State of Himachal Pradesh vs Tara Chand

Sanjay Karol, J.—State has appealed against the judgment dated 11.11.2009 of the learned Special Judge, Fast Track Court, Shimla, Camp at Rohru, Himachal Pradesh, passed in Sessions Trial No. 10-5/7 of 2008, titled as State of Himachal Pradesh v. Tara Chand, challenging the acquittal of respondent Tara Chand (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that in the morning of 27.5.2006, police party headed by ASI Tej Ram PW-4) and comprising of HHC Bhag Mal (not examined) and Constable Sarwan Kumar (PW-5), was on patrol duty. At 8.15 a.m., when the police party reached village Gadli, it saw opium plants sown in a field above path, in between two small houses. ASI Tej Ram called residents of the area, namely Smt. Shanta Devi (PW-2, Jagdev Sharma (Pw-3), Smt. Lachhi Devi (not examined), Smt. Remeshwari Devi (not examined) to spot, who on enquiry told that the houses and the field in which the opium plants were sown belonged to the accused, who are not present in the house at that time. He was called and the spot was got photographed. The spot was got demarcated from Naib Tehsildar Shri Jai Lal Chauhan (PW-1) and Patwari Amar Chand (PW-4), and report (Ex. PA) obtained. On counting, the opium plants were found to be 1794. Two samples, each of 10 plants, were separated. Remaining plants were made into different parcels. Thereafter, the bulk parcels and the samples were sealed with seal of impression ''K''. Ruka (Ex. PF) was sent through Constable Sarwan Kumar, on the basis of FIR No. 34/06, dated 27.5.2006 (Ex.PM), under the provisions of Section 18 of the NDPS Act, was registered at Police Station, Chirgaon, District Shimla, Himachal Pradesh. The case property was produced before SHO Pritam Singh (PW-13), who resealed the same with his seal of impression ''P'' and deposited the same in the Malkhana. Sealed sample was sent to the Central Testing Laboratory, Kandghat and report (Ex.PP) taken on record. On completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 20 (should be 18) of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, on behalf of the State as also Mr. Vishal Panwar, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

In the instant case, out of four independent witnesses associated by the police, namely Smt. Shanta Devi, Jagdev Sharma, Smt. Lachhi Devi, Smt. Remeshwari Devi, only two, Jagdev Sharma and Shanta Devi have been explained as PW-2 and PW-3, respectively, who have not supported the prosecution case. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their testimonies.

It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy.

Other two independent witnesses Smt. Rameshwari Devi and Smt. Lachhi Devi were not examined, only for the reason that they had been worn over by the accused. Record does not reveal such fact to have been substantiated by the prosecution.

In Gurminej Singh and others Vs. State of Punjab, , the apex Court held that dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon. But each case has to be considered on its separate facts.

It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.

Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction.

"[See: Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; Tahir Vs. State (Delhi), ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.

Constable Sarwan Kumar (PW-5) states that they were on routine patrol duty and no raiding party was formed. Naib Tehsildar and Patwari reached the spot at about 11 a.m. and demarcation was started after their arrival. He states that ruka was written by ASI Tej Ram and that he left the spot, with ruka, for the Police Station at 10.15 a.m. ASI Tej Ram also states that he handed over the ruka to Sarwan Kumar for being taken to the Police Station at 10.15 a.m. Now, when Sarwan Kumar had left the spot at 10.15 a.m., then how he came to know that the Naib Tehsildar and Patwari reached the spot at 11 a.m. and carried out the demarcation. It has not been explained. Both Sarwan Kumar and ASI Tej Ram state that the seal after use was handed over to witness Jagdev Sharma, who also admits such fact, but failed to produce the same in Court, stating that the same was misplaced. This further renders the prosecution case to be doubtful.

Sarwan Kumar and ASI Tej Ram state that they left the police station in the morning of 27.5.2006 for the purpose of routine patrolling. However, there is nothing on record to establish Ravangi (departure) of the police to the spot, in connection with the same. Genesis of the prosecution story, to our mind, does not inspire confidence at all.

What further needs to be examined is as to whether prosecution has been able to establish, by leading clear, cogent and convincing material, cultivation of opium poppy by the accused in the fields owned and possessed by him.

ASI Tej Ram states that for ascertaining ownership and possession, he got the demarcation of land conducted through Naib Tehsildar Shri Jai Lal Chauhan (PW-1), who states that he alongwith Patwari Amar Chand, conducted demarcation on the spot and the field, in which poppy plants were sown, was on Khasra No. 1638, which is owned by 24-25 persons, and share of the accused in the said land is less than 1 biswansi. Shri Jai Prakash (PW-9) states that when he was Pradhan of the Gram Panchayat, Todsa, father of the accused expressed his desire to partition the land between his sons, which was done and the land in question fell into the share of accused. He also states that a deed of partition was prepared, but however, the same has not been placed on record and revenue record reveals a totally different position. Witness also admits that during Panchayat elections, accused supported his opponents.

Thus, in our considered view, it cannot be said that prosecution has been able to establish, beyond reasonable doubt, the fact that the accused exclusively owned or possessed the field, comprising in Khasra No. 1638, over which opium poppy is alleged to have been cultivated.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. It cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused is exclusive owner and in possession of Khasra No. 1638, situate in village Gadli, Police Station, Chirgaon, over which opium poppy plants were found to be cultivated and that it is he who had cultivated the same.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.